Special Guardianship Order v Adoption: choosing the best option for the child

Family legal matters are normally fraught and emotional affairs and they require a high degree of sensitivity on the part of professional advisers who are tasked with helping to resolve them. However, when children are involved, the emotional difficulties and sensitivity required can increase by magnitudes. If a child does not want to live with their parents, for whatever reason, then the mission must be to seek to provide that child with security, stability and a sense of belonging, as far as possible.

Special Guardianship Orders

A Special Guardianship Order is when a family court appoints one or more people to be the child’s special guardian. They were introduced by the Adoption and Children Act 2002 in order to provide a sense of permanence and stability for a child and to bridge the perceived gap between Child Arrangement Order (formerly known as ‘Residence Order’) and adoption.

The criteria for applying for a Special Guardianship Order is that the applicant(s) must be over the age of 18 and satisfy at least one of the following conditions:

• they are a foster carer, and the child has lived with them for a period of one year before the application; or
• the child has lived with them for three out of the last five years; or
• they are the child’s guardian; or
• the child is in care and the local authority consents to them making an application; or
• there is a Child Arrangements Order or Residence Order in place; or
• they are a relative of the child, and the child has lived with them for at least one year prior to the application; or
• they have permission from the court to make the application.

In most cases, the child will already have been living with the applicant before the Order is granted, so seeking the Order is, in effect, making de facto guardianship of a child de jure.

The Order, if granted, will invest the Special Guardian(s) with the power to exercise parental responsibility for the child to the exclusion of the child’s actual parents and to make day-to-day decisions about the child’s care and upbringing.

However, it is important to note that a Special Guardianship Order does not sever the links between the child and their birth parents. Indeed, the Special Guardian(s) are still expected to consult the child’s birth parents in relation to all important decisions, such as any medical treatment that the child may need and where the child should go to school.

Furthermore, the Special Guardian(s) cannot change the child’s name and also cannot take the child abroad for any period in excess of three months.

Unless it is terminated beforehand by the court, then the Special Guardianship Order will expire automatically on the child’s 18th birthday.

Adoption Orders

Adoption Orders differ from Special Guardianship Orders in a very significant way in that an adoption order does sever all the legal ties between a child and their birth parents.

Under an Adoption Order, all parental responsibility is transferred to the adoptive parent(s) and, once made, the Order is permanent. While not quite irrevocable, revocation is very rare and will only be granted in exceptional circumstances. So, adopting a child is forever.

A person (or persons) can apply for an Adoption Order if they are over the age of 21 and habitually resident or domiciled in the UK. In the majority of cases, the child in question must have been living with the applicant before the application for the Order is made. In the case of an application by a relative of the child, the requirement is that the child has lived with that relative for no less than three out of the five years immediately preceding the application. If this requirement is not met, then it is still possible to apply for an Adoption Order but the applicant must apply to the court for permission (or ‘leave’) beforehand.

Once an Adoption Order is made, the General Register Office will issue an adoption certificate which replaces the child’s birth certificate and will name the adoptive parents as the child’s parents. The child will take the adoptive parents’ surname and will be deemed to have exactly the same rights that a biological child would have.

While there is no legal requirement for either the adoptive parent or the child to continue to have any contact with the child’s birth parents or wider family, some contact arrangements can be entered into if that is considered to be in the child’s best interests.

Getting help

Whether a Special Guardianship Order or an Adoption Order is appropriate will entirely depend upon the circumstances but the court will always act in the best interests of the child as it is required to do under the terms of the Children Act 1989. If you have a child in your care and you wish to make the arrangement permanent and stable, then it is vital that you seek advice from a qualified and experienced family lawyer who can advise you on the best course of action to take.

For further information and trusted legal advice regarding family law or child disputes, get in touch with us at Carlsons Solicitors.